BUCK DOE, PETITIONER v. ELAINE L.
CHAO,SECRETARY OF LABOR

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OFAPPEALS FOR THE FOURTH CIRCUIT

In this Privacy Act suit brought under
5 U.S.C. §
552a(g)(1)(D), the Government concedes the alleged
violation and does not challenge the District Courts
finding that the agency in question (the Department of Labor)
acted in an intentional or willful manner. Tr. of Oral Arg.
35; Brief for Respondent (I). Nor does the Government here
contest that Buck Doe, the only petitioner before us, suffered
an adverse effect from the Privacy Act violation.
The case therefore cleanly presents a sole issue for this
Courts resolution: Does a claimant who has suffered an
adverse effectin this case and typically,
emotional anguishfrom a federal agencys intentional
or willful Privacy Act violation, but has proved no
actual damages beyond psychological harm, qualify
as a person entitled to recovery within the meaning
of §552a(g)(4)(A)? In accord with Circuit Judge Michael,
who disagreed with the Fourth Circuits majority on the
need to show actual damages, I would answer that question
yes.

Section 552a(g)(4)(A) affords a
remedy for violation of a Privacy Act right safeguarded by
§552a(g)(1)(C) or (D). The words a person entitled
to recovery, as used in §552a(g)(4)(A)s
remedial prescription, are most sensibly read to include anyone
experiencing an adverse effect as a consequence of
an agencys intentional or willful commission of a Privacy
Act violation of the kind described in §552a(g)(1)(C) or
(D). The Acts text, structure, and purpose warrant this
construction, under which Doe need not show a current pecuniary
loss, or actual damages of some other sort, to
recover the minimum award of $1,000, attorneys fees, and
costs.

I

Section 552a(g)(4) provides:

In any suit brought under the
provisions of subsection (g)(1)(C) or (D) of this section in
which the court determines that the agency acted in a manner
which was intentional or willful, the United States shall be
liable to the individual in an amount equal to the sum
of

(A) actual damages sustained by
the individual as a result of the refusal or failure, but in no
case shall a person entitled to recovery receive less than the
sum of $1,000; and

(B) the costs of the action
together with reasonable attorney fees as determined by the
court.

The opening clause of §552a(g)(4) prescribes two
conditions on which liability depends. First, the
claimants suit must lie under §552a(g)(1)(C) or (D);
both provisions require an agency action adverse to
the claimant. Section 552a(g)(1)(C) authorizes a civil action
when an agency fails to maintain [a] record concerning
[an] individual with [the] accuracy, relevance, timeliness, and
completeness needed to determine fairly the
qualifications, character, rights, or opportunities of, or
benefits to the individual, if the agencys lapse
yields a determination adverse to the
individual. (Emphasis added.) Section 552a(g)(1)(D)
allows a civil action when an agency fails to comply with
[a] provision of [§552a], or [a] rule promulgated
thereunder, in such a way as to have an adverse effect on an
individual. (Emphasis added.) Second, the
agency action triggering the suit under §552a(g)(1)(C) or
(D) must have been intentional or willful.
§552a(g)(4). If those two liability-determining
conditions are satisfied (suit under §552a(g)(1)(C) or
(D); intentional or willful conduct), the next clause specifies
the consequences: [T]he United States shall be liable to
the individual in an amount equal to the sum of the
recovery allowed under §552a(g)(4)(A) and the costs and
fees determined under §552a(g)(4)(B).

The terms actual damages
and person entitled to recovery appear only in the
text describing the relief attendant upon the agencys
statutory dereliction; they do not appear in the preceding text
describing the conditions on which the agencys liability
turns. Most reasonably read, §552a(g)(4)(A) does not wend
back to add actual damages as a third
liability-determining element. See Davis v. Michigan
Dept. of Treasury,489 U.S. 803, 809
(1989) (It is a fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme.).

Nor, when Congress used different
words, here actual damages sustained by the
individual and a person entitled to recovery,
should a court ordinarily equate the two phrases. Had Congress
intended the meaning that the Government urged upon this Court,
one might have expected the statutory instruction to read, not
as it does: actual damages but in no case shall a
person entitled to recovery receive less than
$1,000. Instead, Congress more rationally would have
written: actual damages but in no case shall a
person who proves such damages [in any amount] receive less
than $1,000. Cf. Barnhart v. Sigmon Coal Co.,
534 U.S. 438,
454 (2002) (We refrain
from concluding here that the differing language in the two
subsections has the same meaning in each. We would not presume
to ascribe this difference to a simple mistake in
draftsmanship.
(quoting Russello v. United States,464 U.S. 16, 23
(1983))). Just as the words person entitled to
recovery suggest greater breadth than individual
[who has sustained] actual damages, so the term
recovery ordinarily encompasses more than get[ting] or win[ning]
back, Brief for
Respondent 26 (quoting Websters Third New International
Dictionary 1898 (1966)). Recovery generally
embraces [t]he obtaining of a right to something (esp.
damages) by a judgment or decree and [a]n amount
awarded in or collected from a judgment or decree.
Blacks Law Dictionary 1280 (7th ed. 1999). So
comprehended, recovery here would yield a claimant
who suffers an adverse effect from an agencys
intentional or willful §552a(g)(1)(C) or (D) violation a
minimum of $1,000 plus costs and attorneys fees, whether
or not the claimant proves actual damages.

It is a cardinal
principle of statutory construction that a statute
ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant. TRW Inc. v. Andrews,534 U.S. 19, 31 (2001)
(quoting Duncan v. Walker, 533 U.S. 167, 174
(2001) (internal quotation marks omitted)). The Courts
reading of §552a(g)(4) is hardly in full harmony with that
principle. Under the Courts construction, the words
a person entitled to recovery have no office, see
ante, at 89, n. 8, and the
liability-determining element adverse effect
becomes superfluous, swallowed up by the actual
damages requirement.1 Further, the Courts interpretation
renders the word recovery nothing more than a
synonym for actual damages, and it turns the phrase
shall be liable into may be liable. In
part because it fails to give effect to every clause and
word Congress wrote,
United States v. Menasche,348 U.S. 528,
538539 (1955) (quoting Montclair v.
Ramsdell,107
U.S. 147, 152 (1883)), the Courts reading of
§552a(g)(4) is at odds with the interpretation prevailing
in the Federal Circuits.

I would adhere to the interpretation
of the key statutory terms advanced by most courts of appeals.
As interpreted by those courts, §552a(g)(4) authorizes a
minimum $1,000 award that need not be hinged to proof of actual
damages. See Orekoya v. Mooney, 330 F.3d 1, 5
(CA1 2003) (§552a(g)(4) makes available [b]oth
actual damages sustained by the individual and
statutory minimum damages of $1,000); Wilborn v.
Department of Health and Human Servs., 49 F.3d 597, 603
(CA9 1995) (statutory minimum of $1,000 under
§552a(g)(4)(A) meant to provide plaintiffs with
no provable damages the incentive to sue
(quoting Fitzpatrick v. IRS, 665 F.2d 327, 330
(CA11 1982))); Waters v. Thornburgh, 888 F.2d
870, 872 (CADC 1989) (If a plaintiff establishes that she
suffered an adverse effect from an
intentional or willful violation of
§552a(e)(2), the plaintiff is entitled to the
greater of $1,000 or the actual damages sustained.
(internal quotation marks omitted)); Johnson v.
Department of Treasury, IRS, 700 F.2d 971, 977, and
n. 12 (CA5 1983) (Even without proof of actual damages,
[t]he statutory minimum of $1,000 [under
§552a(g)(4)(A)], of course, is recoverable.);
Fitzpatrick, 665 F.2d, at 331 (Because [the
plaintiff] proved only that he suffered a general mental injury
from the disclosure, he could not recover beyond the statutory
$1,000 minimum damages, costs, and reasonable attorneys
fees [under §552a(g)(4)].); cf. Quinn v.
Stone, 978 F.2d 126, 131 (CA3 1992) (adverse
effect but not actual damages is a
necessary element to maintain a suit for
damages under the catch-all provision of 5 U.S.C. §
552a(g)(1)(D) (internal quotation marks omitted));
Parks v. IRS, 618 F.2d 677, 680, 683 (CA10 1980)
(plaintiffs seeking the award of a minimum of $1,000
damages together with attorneys fees under
§552a(g)(4) state a claim by alleging the agency acted
intentionally or willfully when it illegally disclosed
protected information, causing psychological damage or
harm). But see Hudson v. Reno, 130 F.3d
1193, 1207 (CA6 1997) (A final basis for affirming the
District Courts decision with respect to [the
plaintiff]s claims under the Privacy Act is her failure
to show actual damages, as required by
[§552a(g)(4)].), overruled in part on other grounds,
Pollard v. E. I. du Pont de Nemours & Co., 532 U.S. 843 (2001);
Molerio v. FBI, 749 F.2d 815, 826 (CADC 1984)
(This cause of action under [§§552a(g)(1)(C)
and (g)(4)(A)] requires, however, not merely an intentional or
willful failure to maintain accurate records, but also
actual damages sustained as a result of such
failure.).

The view prevailing in the Federal
Circuits is in sync with an Office of Management and Budget
(OMB) interpretation of the Privacy Act published in 1975, the
year following the Acts adoption. Congress instructed
OMB to develop guidelines and regulations for the use of
agencies in implementing the provisions of [the Privacy
Act]. §6, 88 Stat. 1909. Just over six months
after the Acts adoption, OMB promulgated Privacy Act
Guidelines. 40Fed. Reg. 28949 (1975). The Guidelines
speak directlyto the issue presented in this case. They
interpret §§552a(g)(1)(C), (D), and (g)(4) to
convey:

When the court finds that an
agency has acted willfully or intentionally in violation of the
Act in such a manner as to have an adverse effect upon the
individual, the United States will be required to pay

The purpose and legislative history of
the Privacy Act, as well as similarly designed statutes, are in
harmony with the reading of §552a(g)(4) most federal
judges have found sound. Congress sought to afford recovery
for any damages resulting from the
willful or intentional violation of any
individuals rights under th[e] Act. §2(b)(6),
88 Stat. 1896 (emphasis added). Privacy Act violations
commonly cause fear, anxiety, or other emotional
distressin the Acts parlance, adverse
effects. Harm of this character must, of course, be
proved genuine.3 In cases like Does, emotional distress
is generally the only harm the claimant suffers, e.g.,
the identity theft apprehended never materializes.4

It bears emphasis that the Privacy Act
does not authorize injunctive relief when suit is maintained
under §552a(g)(1)(C) or (D). Injunctive relief, and
attendant counsel fees and costs, are available under the Act
in two categories of cases: suits to amend a record,
§552a(g)(2), and suits for access to a record,
§552a(g)(3). But for cases like Does, brought under
§552a(g)(1)(C) or (D), see supra, at 2, only
monetary relief is available. Hence, in the Governments
view, if a plaintiff who sues under §552a(g)(1)(C) or (D)
fails to prove actual damages, he will not be entitled to
attorneys fees. Brief for Respondent 39
([T]he Privacy Act permits an award only of
reasonable attorneys fees. The most critical
factor in determining the reasonableness of an attorney fee
award is the degree of success obtained. For a plaintiff who
enjoys no success in prosecuting his claim, the only
reasonable fee is no fee at all. (quoting Farrar v.
Hobby,506 U.S.
103, 115 (1992)) (citations omitted)).

The Courts reading of
§552a(g)(4) to require proof of actual
damages, however small, in order to gain the $1,000
statutory minimum, ironically, invites claimants to arrange or
manufacture such damages. The following colloquy from oral
argument is illustrative.

Court: Suppose . . . Doe said,
Im very concerned about the impact of this on my
credit rating, so Im going to [pay] $10 to a . . . credit
reporting company to find out whether theres been any
theft of my identity, $10. Would there then be a claim
under this statute for actual damages?

Counsel for respondent Secretary of
Labor Chao: [T]here would be a question whether
that was a reasonable response to the threat, but in theory, an
expense like that could qualify as pecuniary harm and, thus, is
actual damages. Tr. of Oral Arg. 43 (internal quotation
marks added).

Indeed, the Court itself suggests that fees associated
with running a credit report or the charge for a
Valium prescription might suffice to prove actual
damages. Ante, at 11, n. 10. I think it
dubious to insist on such readily created costs as essential to
recovery under §552a(g)(4). Nevertheless, the
Courts examples of what might qualify as actual
damages indicate that its disagreement with the
construction of the Act prevailing in the Circuits, see
supra, at 56, is ethereal.

The Government, although recognizing
that actual damages may be slender and easy to
generate, fears depletion of the federal fisc were the Court to
adopt Does reading of §552a(g)(4). Brief for
Respondent 2223, n. 5. Experience does not support
those fears. As the Government candidly acknowledged at oral
argument: [W]e have not had a problem with enormous
recoveries against the Government up to this point. Tr.
of Oral Arg. 35. No doubt mindful that Congress did not
endorse massive recoveries, the District Court in this very
case denied class-action certification, see App. to Pet. for
Cert. 65a, and other courts have similarly refused to certify
suits seeking damages under §552a(g)(4) as class actions.
See, e.g., Schmidt v. Department of Veterans
Affairs, 218 F. R. D. 619, 637 (ED Wis. 2003)
(denying class certification on ground that each individual
would have to prove he suffered an adverse effect as a
result of the [agency]s failure to comply with [the
Act]); Lyon v. United States, 94
F. R. D. 69, 76 (WD Okla. 1982) (In Privacy Act
damages actions, questions affecting only individual members
greatly outweigh questions of law and fact common to the
class.). Furthermore, courts have disallowed the runaway
liability that might ensue were they to count every single
wrongful disclosure as a discrete basis for a $1,000 award.
See, e.g., Tomasello v. Rubin, 167 F.3d
612, 618 (CADC 1999) (holding that 4,500 more-or-less
contemporaneous transmissions of the same record by
facsimile constituted one act, entitling the
plaintiff to a single recovery of $1,000 in damages (internal
quotation marks omitted)).

The text of §552a(g)(4), it is
undisputed, accommodates two concerns. Congress sought to give
the Privacy Act teeth by deterring violations and providing
remedies when violations occur. At the same time, Congress did
not want to saddle the Government with disproportionate
liability. The Senate bill advanced the former concern; the
House bill was more cost conscious. The House bill, as
reported by the Committee on Government Operations and passed
by the House, provided:

In any suit brought under the
provisions of subsection (g)(1)(B) or (C) of this section in
which the court determines that the agency acted in a manner
which was willful, arbitrary, or capricious, the United States
shall be liable to the individual in an amount equal to the sum
of

(A) actual damages sustained by
the individual as a result of the refusal or failure; and

(B) the costs of the action
together with reasonable attorney fees as determined by the
court. H. R. 16373, 93d Cong., 2d Sess.,
§552a(g)(3) (1974), reprinted in Legislative History of
the Privacy Act of 1974: Source Book on Privacy, p. 288
(Joint Comm. Print compiled for the Senate and House Committees
on Government Operations) (hereinafter Source Book).

The Senate bill, as amended and
passed, provided:

The United States shall be liable
for the actions or omissions of any officer or employee of the
Government who violates the provisions of this Act, or any
rule, regulation, or order issued thereunder in the same manner
and to the same extent as a private individual under like
circumstances to any person aggrieved thereby in an amount
equal to the sum of

(1) any actual and general
damages sustained by any person but in no case shall a person
entitled to recovery receive less than the sum of $1,000;
and

(2) in the case of any
successful action to enforce any liability under this section,
the costs of the action together with reasonable
attorneys fees as determined by the court. S.
3418, 93d Cong., 2d Sess., §303(c) (1974), reprinted in
Source Book 371.

The provision for monetary relief
ultimately enacted, §552a(g)(4), represented a compromise
between the House and Senate versions. The House bills
culpability standard (willful, arbitrary, or
capricious), not present in the Senate bill, accounts for
§552a(g)(4)s imposition of liability only when the
agency acts in an intentional or willful manner.
That culpability requirement affords the Government some
insulation against excessive liability.5 On the other hand, the enacted
provision adds to the House allowance of actual
damages only, the Senate specification that in no
case shall a person entitled to recovery receive less than the
sum of $1,000 . §552a(g)(4)(A). The
$1,000 minimum, as earlier developed, supra, at
78, enables individuals to recover for genuine, albeit
non-pocketbook harm, and gives persons thus adversely affected
an incentive to sue to enforce the Act.6

Congress has used language similar to
§552a(g)(4) in other privacy statutes. See 18 U.S.C. §
2707(c);726 U.S.C. §
6110(j)(2);826
U.S.C. § 7217(c) (1976 ed., Supp. V).9 These other statutes have been
understood to permit recovery of the $1,000 statutory minimum
despite the absence of proven actual damages. See H. R.
Rep. No. 99647, p. 74 (1986) (Damages [under 18 U.S.C. §
2707(c)] include actual damages, any lost profits but in no
case less than $1,000.); S. Rep. No. 99541, p.
43 (1986) ([D]amages under [18 U.S.C. §
2707(c)] includ[e] the sum of actual damages suffered by
the plaintiff and any profits made by the violator as the
result of the violation with minimum statutory damages
of $1,000 and reasonable attorneys fees and
other reasonable litigation costs.); H. R. Conf.
Rep. No. 941515, p. 475 (1976) (Title 26 U.S.C. §
6110(j)(2) creates a civil remedy for intentional or
willful failure of the IRS to make required deletions or to
follow the procedures of this section, including minimum
damages of $1,000 plus costs.); S. Rep. No.
94938, p. 348 (1976) (Because of the difficulty in
establishing in monetary terms the damages sustained by a
taxpayer as the result of the invasion of his privacy caused by
an unlawful disclosure of his returns or return information,
[26 U.S.C. §
7217(c)] provides that these damages would, in no event, be
less than liquidated damages of $1,000 for each
disclosure.). See also Johnson v. Sawyer,
120 F.3d 1307, 1313 (CA5 1997) (Pursuant to [26 U.S.C.]
§7217, a plaintiff is entitled to his actual damages
sustained as a result of an unauthorized disclosure (including
punitive damages for willful or grossly negligent disclosures)
or to liquidated damages of $1,000 per such disclosure,
whichever is greater, as well as the costs of the
action.); Rorex v. Traynor, 771 F.2d 383,
387388 (CA8 1985) (We do not think that hurt
feelings alone constitute actual damages compensable under [26 U.S.C. §
7217(c)]. Accordingly, the jurys award of $30,000 in
actual damages must be vacated. The taxpayers are each
entitled to the statutory minimum award of $1,000.). As
Circuit Judge Michael, dissenting from the Fourth
Circuits disposition of Does claim, trenchantly
observed: [T]he remedy of minimum statutory damages is a
fairly common feature of federal
legislation . In contrast, I am not aware of
any statute in which Congress has provide[d] for a statutory
minimum to actual damages. 306 F.3d, 170, 195 (2002)
(opinion concurring in part and dissenting in part) (internal
quotation marks omitted).

* * *

Doe has standing to sue, the Court
agrees, based on allegations that he was torn
all to pieces and greatly concerned and
worried because of the disclosure of his Social Security
number and its potentially devastating
consequences. Ante, at 2 (some internal quotation
marks omitted). Standing to sue, but not to succeed, the Court
holds, unless Doe also incurred an easily arranged
out-of-pocket expense. See ante, at 11, n. 10.10 In my view,
Congress gave Privacy Act suitors like Doe not only standing to
sue, but the right to a recovery if the fact trier credits
their claims of emotional distress brought on by an
agencys intentional or willful violation of the Act. For
the reasons stated in this dissenting opinion, which track the
reasons expressed by Circuit Judge Michael dissenting in part
in the Fourth Circuit, I would reverse the judgment of the
Court of Appeals.

Notes

1. The Court interprets the
reference in §552a(g)(1)(D) to adverse effect
as a term of art identifying a potential plaintiff who
satisfies the injury-in-fact and causation requirements of
Article III standing, and who may consequently bring a civil
action without suffering dismissal for want of standing to
sue. Ante, at 9. Under the Courts reading,
§552a(g)(1)(D) open[s] the courthouse door to
individuals adversely affected by an intentional or
willful agency violation of the Privacy Act, ante, at
10, while §552a(g)(4) bars those individuals from
recovering anything if they do not additionally show actual
damages. See infra, at 89. In other words, the
open door for plaintiffs like Buck Doe is an illusion: what one
hand opens, the other shuts.

2. In briefing this case, the Government
noted a communication to the Office of the Solicitor General
from an unnamed OMB official conveying that OMB does not now
interpret its Guideline to require the payment of $1000
to plaintiffs who have sustained no actual damages from a
violation of the Act. Brief for Respondent 4748.
Such an informal communication cannot override OMBs
contemporaneous, long-published construction of
§552a(g)(4); cf. Bowen v. Georgetown Univ.
Hospital,488 U.S.
204, 212 (1988) (We have never applied [deference] to
agency litigating positions that are wholly unsupported by
regulations, rulings, or administrative practice.);
INS v. Cardoza&nbhyph;Fonseca,480 U.S. 421, 446, n.
30 (1987) (An agency interpretation of a relevant
provision which conflicts with the agencys earlier
interpretation is entitled to considerably less
deference, than a consistently held agency view.
(quoting Watt v. Alaska,451 U.S. 259, 273
(1981))).

3. Circuit Judge Michael, who dissented
from the Fourth Circuits judgment as to petitioner Buck
Doe but agreed with his colleagues on this point, noted:
[A]dverse effects must be proven rather than merely
presumed . 306 F.3d 170, 187 (2002) (opinion
concurring in part and dissenting in part). Doe had declared
in his affidavit that no amount of money could compensate
[him] for worry and fear of not knowing when someone would use
[his] name and Social Security number to establish credit, a
new identity, change [his] address, use [his] checking account
or even get credit cards. App. 15. Does several
co-plaintiffs, against whom summary judgment was entered and
unanimously affirmed on appeal, made no such declaration.

4. The Court asserts that Does
reading of §552a(g)(4)(A) is at odds with the
traditional understanding that tort recovery requires
proof of some harm for which damages can reasonably be
assessed. Ante, at 6. Although that
understanding applies to common negligence actions, see W.
Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on
Law of Torts 165 (5th ed. 1984) (cited ante, at 6), it
is not the black letter rule for privacy actions. See 3
Restatement (Second) of Torts §652H, p. 401 (1976)
(One who has established a cause of action for invasion
of his privacy is entitled to recover damages for his
mental distress proved to have been suffered if it is of a kind
that normally results from such an invasion
.); id., at 402, Comment b
(The plaintiff may also recover damages for emotional
distress or personal humiliation that he proves to have been
actually suffered by him, if it is of a kind that normally
results from such an invasion [of privacy] and it is normal and
reasonable in its extent.).

5. Petitioner Doe recognizes that
the intentional [or] willful level of
culpability a Privacy Act plaintiff must demonstrate is a
formidable barrier. Brief for Petitioner 29; Reply Brief
1 (Congress and commentators agree [the intentional
or willful qualification] is a formidable obstacle to
recovery under the Act.). In this Court and case, as
earlier noted, supra, at 1, the Government does not
challenge the finding that the Department of Labors
violation of the Act was intentional or willful.
Tr. of Oral Arg. 35; see App. to Pet. for Cert. 96a97a
(Characterizing the Department of Labors actions as
intentional and willful, the Magistrate Judge
observed: The undisputed evidence shows that the
Department took little, if any, action to see that it complied
with the Privacy Act . Several of the
Administrative Law Judges responsible for sending out the
multi-captioned hearing notices testified that they had
received no training on the Privacy Act.). Because the
intentional or willful character of the
agencys conduct is undisputed here, the Court is not
positioned to give that issue the full consideration it would
warrant were the issue the subject of dispute.

6. The Court places great weight on
Congress establishment of a Privacy Protection Study
Commission, and its charge to the Commission to consider, among
many other things, whether the Federal Government should
be liable for general damages incurred by an individual as the
result of a willful or intentional violation of
[§552a(g)(1)(C) or (D)]. Ante, at 7
(internal quotation marks omitted). This less than crystalline
reference to the Commission, however, left unaltered
§552a(g)(4)(A)s embracive term a person
entitled to recovery, words the Court must read out of
the statute to render its interpretation sensible. See
ante, at 89, n. 8.

7. Section 2707(c), concerning
unauthorized access to electronic communications, provides:
The court may assess as damages in a civil action under
this section the sum of the actual damages suffered by the
plaintiff and any profits made by the violator as a result of
the violation, but in no case shall a person entitled to
recover receive less than the sum of $1,000. If the
violation is willful or intentional, the court may assess
punitive damages. In the case of a successful action to
enforce liability under this section, the court may assess the
costs of the action, together with reasonable attorney fees
determined by the court. (Emphasis added.)

8. Section 6110(j)(2) provides: In
any suit brought under the provisions of paragraph (1)(A) in
which the Court determines that an employee of the Internal
Revenue Service intentionally or willfully failed to delete in
accordance with subsection (c), or in any suit brought under
subparagraph (1)(B) in which the Court determines that an
employee intentionally or willfully failed to act in accordance
with subsection (g) or (i)(4)(B), the United States shall be
liable to the person in an amount equal to the sum of
(A) actual damages sustained by the person but
in no case shall a person be entitled to receive less than the
sum of $1,000, and (B) the costs of the
action together with reasonable attorneys fees as
determined by the Court. (Emphasis added.)

9. Section 7217(c), which was repealed in
1982, provided: In any suit brought under the
provisions of subsection (a), upon a finding of liability on
the part of the defendant, the defendant shall be liable to the
plaintiff in an amount equal to the sum of
(1) actual damages sustained by the plaintiff as a
result of the unauthorized disclosure of the return or return
information and, in the case of a willful disclosure or a
disclosure which is the result of gross negligence, punitive
damages, but in no case shall a plaintiff entitled to
recovery receive less than the sum of $1,000 with respect
to each instance of such unauthorized disclosure; and
(2) the costs of the action. (Emphasis
added.)